DACA in the Supreme Court Explanation

The Supreme Court heard arguments for and against DACA on November 12, 2019. Why? The Trump Administration tried to end DACA. Three courts told it they could not. Now the Supreme Court is deciding if it can. Immigration attorney, Andres Mejer, explains what was argued by both the Department of Justice attorney and the attorney for DACA.

Transcript (Transcripción):

Andres Mejer: Number two, DACA arguments. This is the second subject for our English segment of our radio show, Para Ser Legal to be legal. November 12th, 2019. The Supreme Court United States heard oral argument on whether DACA can be eliminated. So let me give you a little bit of background. Context is important. September. So September 5th, 2017, Trump administration tried to end the program that Obama administration created in June 2012 and implemented in August 2012. That program granted about 800000 Dreamers protection from deportation with work authorization if they met certain criteria. Up until November 12th, that Trump administration had said they had no choice but to stop the program because the program was illegal and unconstitutional from when it was first created in 2012. Let me repeat that they had no choice but to eliminate it because it’s illegal. That was the very simple justification. 

Andres Mejer :They didn’t say as a policy reason we view the pros and the cons, and we believe that in the exercise of our discretion that this is not what we should be doing. They didn’t say that. They just said it’s illegal. Period. End of story. Three federal courts disagreed and said, listen, what? The administration revokes a policy where so many people, businesses and even the US economy relies on. The administration has to provide to provide a fully supported decision weighing the pros and cons Now those three. 

Andres Mejer :Those decisions then went to the Supreme Court. Now the government’s attorney. Noel Francisco, interestingly, sounds like like an immigrant, but you never know when he opens. Is the argument for a Supreme Court count the justices, they have no authority to review the policy change because DACA is a discretionary program created by the Obama administration and then removed under the Trump administration. So the justification is that DACA uses price, you know, the executive’s prosecutorial discretion to defer the deportations for qualified individuals, meaning I the government agency is using my discretion to eliminate to create a program or to eliminate the program. And for that reason, Supreme Court has no authority to comment on it whatsoever. Now, Judge Ginsburg counter and say, women, you tell me this is a discretionary matter and it does not review reviewable because it’s committed to agency discretion. 

Andres Mejer :But you’re also telling me the agency had no discretion because the program was illegal. How can that be? You can’t. You can’t have you can’t have both sides of the cake. It’s one or the other. Either it’s illegal and no discretion or it is discretion. And we can’t review. We can’t touch it. Which is it? Now, when a DACA attorney, particularly Theodore Olson, when he made his argument, the conservative judges and judges, well, that they’re allowed to say and there’s five of them.

So Judge Alito gave this example. He said, listen, if the administration decides not to prosecute drug cases involving less than five kilos of cocaine and the next administration decides to change the amount to three kilos, would that be reviewable by the courts? No words. He’s making an an an analogy where an agency uses its discretion to do one thing and another one modifies it. And that modification should be reviewable? He asks. Tongue in cheek, because he knows the answer to that should be no.

Now lawyer Olson responded. Listen here. It’s different because of the huge amount of people, industries and businesses that have relied on the program. If the government wants to change the program, it has to lay out good reasons for doing so, not just say was illegal. By the way, I think that argument sucks, but that was that was Lawyer Olson’s argument. And Judge courses responded, called them. What more do you want the government to say? You want us to then litigate? You wanted to litigate for five years whether the explanation was adequate or not. In other words, that is not a precedent we want to begin. That is going to open up a lot of litigation to the Supreme Court and they’re not inclined to go down that road.

But Olsen responded, the judge court said, listen, we don’t know what the Trump administration would do. They do want to own that decision. They just would like the attorney general saying it was illegal. They’re not using their discretion. Now government’s attorney in his rebuttal said that’s not true anymore. Trump administration has decided that even if the courts decide that DACA is legal, they the Trump administration will shut it down. Now there are five conservative judges and four liberal judges. It likely will come down to a party vote.

But you never know. Remember the Affordable Care Act, Obamacare? Chief Justice Roberts decided with the liberal wing to I mean, he tried to split the baby a little bit, but at the other day he still kept the Affordable Care Act. And there are laterl challenges and they may all be go away. But the point is, just because he’s a conservative doesn’t mean he’s automatically going to know gonna. Vote in favor of Thomas Alito, Korsage and Cavinogh. Only time will tell if you have DACA? Don’t wait.